By now, you may have seen a headline or read an article about a Virginia appellate court’s recent decision to “unmask” certain anonymous Yelp reviewers. The decision, Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., has inspired much criticism and hand-wringing from technology bloggers, free speech advocates, and others.
But those criticisms are to some extent overblown. After all, the notion of unmasking an anonymous online speaker is hardly new or unprecedented. On the contrary, courts and legislatures in numerous states (Georgia not among them) have developed standards for addressing discovery requests that seek the identities of anonymous online speakers—and have required disclosure in appropriate cases. Thus, if anything is controversial about the Virginia court’s decision, it is not that the court entertained the plaintiff’s request to “unmask” the anonymous speakers in the first place, but the manner in which it applied the Virginia law applicable to such requests.
That law is Virginia Code Section 8.01-407.1, titled “Identity of persons communicating anonymously over the internet.” The law outlines a procedure for issuing subpoenas which seek the identities of anonymous speakerswho have engaged in tortious or illegal online communications. Among other things, the law requires a requesting party to establish that:
1. The communications at issue are tortious or illegal;
2. Other efforts to identify the speaker(s) have been fruitless; and
3. The identity of the speaker(s) is crucial to the case.
This standard—which closely resembles those used by courts in several other states—seeks to strike a balance between two competing interests: (1) the First Amendment right of speakers to remain anonymous; and (2) the right of victims of defamatory or illegal speech to obtain legal redress. Thus, the law requires a threshold showing that the complained-of speech is actually defamatory or illegal; if it is not, then the speech (and the speaker) is constitutionally protected and the request to “unmask” must be denied.
Application of this standard is, arguably, where the Virginia court got it wrong. At issue in Hadeedwere certain anonymous Yelp reviews in which the authors alleged that a Virginia-based carpet cleaning company damaged their carpets and overcharged them for its services. The company conducted an investigation and determined that “it simply had no record that the negative reviewers were ever actually . . . customers.” It issued a subpoena to Yelp seeking the identities of the anonymous posters. The trial court ordered Yelp to comply with the subpoena and it appealed.
The appellate court, in applying Code Section 8.01-407.1, did not focus on the truth or falsity of the specific statements contained in the anonymous reviews. That is, it did not inquire whether the company actually damaged its customers’ carpets or actually overcharged them, as the anonymous reviews alleged. Instead, it accepted the company’s argument that, if the reviewers were not actual customers, then their reviews were necessarily false and actionable. As the court wrote:
Generally, a Yelp review is entitled to First Amendment protection because it is a person’s opinion about a business that they patronized . . . But this general protection relies upon an underlying assumption of fact: that the reviewer was a customer of the specific company and he posted his review based on his personal experience with the business. If this underlying assumption of fact proves false, in that the reviewer was never a customer of the business, then the review is not an opinion; instead, the review is premised on a false statement of fact—that the reviewer is writing his review based on personal experience. And “there is no constitutional value in false statements of fact.”
There are at least a couple of justifiable criticisms of this reasoning. First, by focusing on the nature of speaker (customer or not?) rather than the substance of his speech (true or false?), the court essentially eviscerated the first requirement of Section 8.01-407.1and collapsed it into its second. By the court’s reasoning, if a requesting party shows that it cannot identify a speaker through a search of its own customer records (evidence that would seem to go to Section 8.01-407.1’s second requirement), then that same evidence can also be used to establish that the speech is defamatory or illegalbecause it is “premised on a false statement of fact—that the reviewer is writing his review based on personal experience.”
This gives rise to a second criticism—that the court’s reasoning invites mischief. As the dissent fairly pointed out, the majority’s rationale would permit “a business subject to critical commentary, commentary not even claimed to be false in substance,” to “force the disclosure of the identity of anonymous commentators simply by alleging that those commentators may not be customers because they cannot identify them in their database.”
Clearly, the Virginia court would have done better to require proof that the online reviews at issue were actually, factuallyfalse and defamatory. But the “sky-is-falling” response to the court’s decision is overblown. Virginia’s unmasking statute attempts to strike the right balance between First Amendment rights and victim’s rights. Although the court may have misapplied that law in this particular case, nothing indicates that its decision signals a broader assault upon, or erosion of, online speakers’ First Amendment rights.